MEMORANDUM
Prеsently before the Court are Defendants Diocese of Scranton (the “Diocese”), Sacred Heart of Jesus Church (“Sacred Heart”), Bishop James C. Timlin (“Bishop Timlin”), Rev. Joseph R. Kopacz (“Father Kopacz”) (collectively the “Diocesan Defendants”) and Brother Antonio F. Anto-nucci’s (“Brother Antonucci”) (collectively “Defendants”) motions for summary judgment (Docs.75-1, 76) as to Counts I, III, IV, V, VI, VII and VIII of Plaintiff John Doe’s Complaint (Doc. 1). The Diocesan Defendants also seek summary judgment as to Plaintiffs claim for punitive damages. For the reasons stated below, the Court will grant in part and deny in part Defendants’ motions. The Court has jurisdiction over this- matter pursuant to 28 U.S.C. §§ 1331 and 1367(a).
1. Factual History
A. Defendant Rev. Albert M. Libera-tore and Richard Roe
Defendant Rev. Albert M. Liberatore (“Liberatore”) was ordained as a priest in the Diocese by Bishop Timlin on August 26, 1989. (Curriculum Vitae of Rev. Albert M. Liberatore, Doc. 88-2 p. 5, “Liber-atore CV”.) Following several years of study at the Catholic University of Lou-vain, in Leuven, Belgium, towards obtaining a Ph.D. in Theology, Liberatore returned to Scranton and, in June of 1995, was assigned by Bishop Timlin to serve as Vocations Director of the Diocese. (Bishop James C. Timlin Dep. 168:2-5, Sept. 22, 2006, Docs. 88-5, 88-6; Liberatore CV at 2.) Liberatore took up residence at St. Pius X Seminary (the “Seminary”) in Dalton, Pennsylvania. (Liberatore CV at 2.) Li-beratore also taught classes at the University of Scranton as a non-resident faculty member. (Liberatore CV at 2; Richard Roe Dep. 11:18-19, Sept. 5, 2006, Doc. 88-4.)
In the fall of 1995, Liberatore befriended Richard Roe (“Roe”), a twenty-one (21) year old male student in the Sacramental Theology class which he taught at the University of Scranton. 1 (Roe Dep. 11:17— 14:18.) Later that semester, Liberatore wrote Roe a letter inquiring as to whether Roe was interested in discerning whether he had a calling for the priesthood. (Roe Dep. 12:1-22.) Roe, in fact, was interested, and, thereafter, he and Liberatore began spending a great deal of time together. (Roe Dep. 15:2-18:22.) Liberаtore took Roe out to dinner, purchased gifts for him, and took him to New York City on multiple occasions. (Id.)
In the spring of 1996, Liberatore encouraged Roe, then a college senior and near graduation, to pursue a full-time position as the Director of Youth and Young Adult Retreats for the Diocese. (Roe Dep. 20:9-11.) This position would require Roe to have an office at the Seminary, where Liberatore resided. (Roe Dep. 21:10-12.) Roe was hired for the position, thanks in part to Liberatore’s recommendation. (Roe Dep. 21:14-18.)
After Roe graduated from the University of Scranton, Liberatore took him to Los Angeles, California, as a graduation gift. (Roe Dep. 23:1-15.) The night before Li-beratore and Roe were to fly to Los Ange-les they went out to several bars to drink. (Roe Dep. 24:1-6.) On the way home, Liberatore and Roe sat in the back seat of a car driven by one of Liberatore’s friends. (Roe Dep. 24:8-17.) During the drive, Li-beratore “leaned on [Roe] and put his hand on [Roe’s] thigh.” (Roe Dep. 24:20-22.) Roe construed this as a sexual overture. (Roe Dep. 27:17.)
Despite the sexual overture on the part of Liberatore, for much of the summer of 1996, Roe stayed in Liberatore’s bedroom at the Seminary while he looked for an apartment. (Roe Dep. 29:1-6; 33:1.) After Roe had found an apartment, he oftentimes stayed overnight in Liberatore’s bedroom at the Seminary. (Roe Dep. 32:16-33:1.) This state of affairs was not kept secret from the other seminarians. (Roe Dep. 33:5-8.) Liberatore would also oftentimes fail to return to the Seminary and instead stay overnight at Roe’s apartment. (Roe Dep. 46:1-4.) Near the end of the summer of 1996, Liberatore began having discussions with Roe about sexuality, particularly in regard to what had transpired in the car on the way home from
During the fall of 1996, Liberatore took Roe and another seminarian, Michael Moe (“Moe”), who was then nineteen (19) years of age, to New York City for dinner and drinks. (Roe Dep. 29:19-31:7; Decl. of Michael Moe ¶ 15, Sept. 14, 2006, Doc. 88-8.) The three of them then stayed the night in a hotel suite. (Roe Dep. 30:18-31:1.) While Moe slept on the couch, Li-beratore and Roe slept in the lone bed. (Roe Dep. 31:14-16.)
This incident was called to the attention of Bishop Timlin by Father Bambera, who, in November of 1996, wrote a memo to Bishop Timlin expressing “serious concerns ... regarding questionable behavior of Father A1 Liberatore.” (Memo from Father Bambera to Bishop Timlin, dated November 27, 1996, Doc. 80-7, “Bambera Memo”.) Father Bambera described this incident as one of “grave concern.” (Id.) Father Bambera also informed Bishop Timlin of the “evolution of [the] relationship” between Liberatore and Roe, which he stated had “become very obvious to the seminarians as well.” (Id.) While Father Bambera opined that he did not feel there was anything improper about the relationship, he related to Bishop Timlin that Li-beratore and Roe spent “an inordinate amount of time” together, that Roe was “often in [Liberatore’s] rooms until late at night”, and that Roe “often becomes the focus of [Liberatore’s] attention at seminary gatherings.” (Id.) Father Bambera also' noted that he had informed others in the Diocese, namely Monsignor David Bohr, Bishop Dougherty, Monsignor John Esseff and Monsignor Dale Rupert, of the relationship between Liberatore and Roe. (Id.)
On an evening in the fall of 1996, Liber-atore and Roe were watching a movie in Liberatore’s room at the Seminary. (Roe Dep. 39:1-22.) Roe was lying on the couch while Liberatore was lying on the floor near the couch. (Id.) After the movie, Liberatore tried to touch Roe in a sexually explicit manner. (Roe Dep. 46:12-18.) Li-beratore then began to discuss sexuality— homosexuality in particular — with Roe. (Roe Dep. 43:8-12.) During this conversation, Liberatore encouraged Roе to engage in homosexual relations with him. (Roe Dep. 43:11^44:10.) Liberatore also discussed with Roe the homosexual activity that Liberatore had engaged in with others, including describing in detail what homosexual acts he had performed. (Roe Dep. 44:17-22.) In fact, Liberatore described homosexual acts in which he had engaged while living in the Seminary. (Roe Dep. 44:20-22.)
In the early part of 1997, Liberatore and Roe took a trip to Philadelphia. (Roe Dep. 50:10-13.) After spending the evening at Dave & Buster’s, a bar and arcade, Liber-atore and Roe stayed the night in a hotel room. (Roe Dep. 53:16-22.) During the night, Liberatore “got out of his bed and got into [Roe’s] bed and laid down next to [Roe] and put his arm around [Roe], and at some point during the night [Libera-tore] put his hand down [Roe’s] pants.” (Id.)
Roe related other incidents in which Li-beratore made unwanted sexual contact with him, including one instance when Roe awakened to find Liberatore’s penis in his hand. (Roe Dep. 69:6-7.)
Another incident, occurring during the spring of 1997, began at dinner when Li-beratore maneuvered his foot into Roe’s crotch while they were at a restaurant. (Roe Dep. 56:20-57:2.) After dinner, Li-beratore invited Roe back to spend the night in his bedroom at the Seminary. (Roe Dep. 57:16-18.) While speaking in the sitting room before heading to bed, Liberatore expressed his displeasure in Roe’s attraction to a young woman whom
A few days later, Roe told Monsignor Rupert that he had been sleeping in Liber-atore’s bedroom, in Liberatore’s bed. (Roe Dep. 62:20-63:3.) Roe also informed Monsignor Rupert that Liberatore had made several attempts to have homosexual contact with Roe. (Roe Dep. 63:12-15.) Roe had many conversations with Monsignor Rupert regarding his relationship with Liberatore. (Roe Dep. 63:9-10.)
In March of 1997, Bishop Timlin was informed of an incident involving Libera-tore and one of the male seminarians. (Summary of Concerns Regarding Fr. Li-beratore, dated March 1997, Doc. 88-8, “Summary”.) During a tour of the Seminary, on February 24, 1997, twenty (20) boys from Bishop Hoban High School “passed by the open door to Peter Poe’s room in which Fr. A1 [Liberatore] was seen lying on Peter’s bed and being given a back massage by Peter.” (Summary at 2.) Bishop Timlin was also informed of Liberatore’s “close relationships” with several of the seminarians, including Michael Moe. (Summary at 1.)
After the altercation between Liberatore and Roe and the back massage with Poe, Bishop Timlin removed Liberatore from the Seminary and reassigned him to St. Clare’s Parish in Dunmore, Pennsylvania. (Bohr Dep. 44:8-9; 68:21-69:4; See Roe Letter at 3.) In July of 1997, Liberatore was reassigned again, this time to Sacred Heart, located in Duryea, Pennsylvania. (See Doc. 1-1 ¶ 11.) Shortly thereafter, Liberatore was named the Pastor of Sacred Heart. (See id.)
B. Liberatore and Plaintiff
Plaintiff was a parishioner and alter server of Sacred Heart. (Moe Deck ¶ 20.) In 1999, Liberatore, as Pastor of Sacred Heart, hired Plaintiff, who was then fourteen (14) years of age, to work at Sacred Heart as a sacristan.
(See
Doc. 1-1 ¶ 14; Patricia Minora Dep. 13:1-6, Jan. 26, 2006, Doc. 89-2.) Over the course of the next year, Liberatore “groomed” Plaintiff (Pl.’s
Eventually, Liberatore began to make sexual overtures toward Plaintiff. (Pl.’s Dep. 166:7-10.) More than two years of sexual abuse ensued, ultimately ending in May of 2002. (See Doc. 1-1 ¶ 37.) During this period of time, Plaintiff would routinely sleep in Liberatore’s bed in the Reсtory at Sacred Heart. (PL’s Dep. 169:24-25.) On nights Plaintiff would sleep over, Li-beratore would oftentimes “spoon” Plaintiff (PL’s Dep. 173:5-10) — that is, Libera-tore and Plaintiff would lie in bed on their sides with Liberatore’s front to Plaintiffs back, such that they fit together in a manner similar to spoons. Wikipedia, supra, “Spooning”, http://en.wikipedia.org/wiki/ Spooning. On many nights, Liberatore would masturbate while Plaintiff was lying with him in bed. (PL’s Dep. 173:10-14.)
Plaintiff also related incidents in which Liberatore would grope Plaintiffs genitals (PL’s Dep. 173:21-25), wear Plaintiffs clothes (PL’s Dep. 173:21-22), and describe sexual techniques and other graphic sexual behavior (PL’s Dep. 179:1-5). Liberatore would also wrestle with Plaintiff, oftentimes groping him in a sexual manner rather than attempt a wrestling maneuver. (PL’s Dep. 65:18-66:2.) Liberatore also admitted to Plaintiff that he was a homosexual, and described to Plaintiff sexually explicit acts which he and his homosexual friends would perform. (PL’s Dep.l79:12-16.) Liberatore also took Plaintiff on trips to New York, staying overnight in a single hotel room with only one bed. (PL’s Dep. 189:5-14.) In addition, Liberatore took Plaintiff to Belgium while he was completing his dissertation. (PL’s Dep. 152:12; Minora Dep. 15:6.) While in Belgium, Plaintiff slept in the same bed with Libera-tore, who would masturbate in the bed and grope Plaintiff while he tried to sleep. (PL’s Dep. 245:7-13.)
C. The Diocesan Defendants
On several occasions the Diocesan Defendants were informed of some of the behavior involving Liberatore and Plaintiff. In January of 2001, Patricia Minora (“Minora”), a friend of Plaintiffs mother, spoke to two priests with whom she had been long-time friends, Monsignors Kevin O’Neill and Joseph Kelly, about her suspicions concerning the relationship between Liberatore and Plaintiff. (Minora Dep. 21:14-31:8.) Minora told them that Plaintiff slept overnight in the Rectory with Liberatore, and that Liberatore had given Plaintiff extravagant gifts and even taken Plaintiff on overnight trips. (Id.) These priests advised Minora to contact Father Kopacz and inform him of her suspicions. (Id.) Minora then called Father Kopacz and told him of thе relationship between Liberatore and Plaintiff. (Id.)
After
receiving a phone call from
Minora
concerning the relationship between Liber-atore and Plaintiff, Monsignor Kevin O’Neill wrote a letter to Bishop Timlin
Additionally, in late 2000 and early 2001, Ann Marie Zongilla (“Zongilla”), a cook and housekeeper at Sacred Heart (Ann Marie Zongilla Dep. 6:24-25, Jan. 30, 2006, Doc. 89-4), voiced her suspicion that Li-beratore was sexually abusing Plaintiff to Susan Doxbeck, the Pastoral Assistant at Sacred Heart, Father Emmanuel, a priest at Sacred Heart, Reverend Edward Williams (“Father Williams”), also a priest at Sacred Heart, and Monsignor John Bendik. (Zongilla Dep. 28:18-21; 36:21-24; 37:6-8; 44:2-9; 60:13-15; Reverend Edward Williams Dep. 35:19-23, Jan. 26, 2006, Doc. 80-2.)
In the fall of 2001 (see Williams Dep. 35:19-23), Helen Negvesky (“Negvesky”), an employee for the Diocese, informed Monsignor Bendik of her concerns about the relationship between Liberatore and Plaintiff. (Helen Negvesky Dep. 40:5-21, Nov. 17, 2005, Doc. 80-4.) Negvesky testified that she told Monsignor Bendik that Plaintiff was “around the Rectory more than [she] thought he should be, and the way Father [Liberatore] looked at him, that they went places together, and just that it didn’t seem right, ... [and] it didn’t look good.” (Negvesky Dep. 41:22-42:3.) Negvesky also told Monsignor Bendik of an incident in which Plaintiff “put his hand down Liberatore’s pants.” (Negvesky Dep. 42:14-17.) Negvesky also stated that there were empty bottles of alcohol littered around Liberatore’s room in the Rectory, and, consequently, she suspected that Liberatore was plying Plaintiff with alcohol. (Negvesky Dep. 43:14-22.)
Also in the fall of 2001, after receiving reports from Negvesky and Zongilla concerning suspicious behavior engaged in by Liberatore and Plaintiff, Father Williams spoke with Monsignor Bendik about the relationship between Liberatore and Plaintiff. (Williams Dep. 35:19-36:25.) Father Williams informed Monsignor Bendik that he thought Liberatore was obsessed with Plaintiff and that Liberatore spent an inordinate amount of time with Plaintiff, including wrestling with Plaintiff and taking Plaintiff on overnight trips. (Williams Dep. 35:19-36:25.) Father Williams also told Monsignor Bendik that the Sacred Heart staff suspected that Liberatore was sexually abusing Plaintiff. (Williams Dep. 37:7-9.)
Monsignor John Bendik acknowledged that he had received calls from Negvesky and Zongilla, each of whom voiced a suspicion that Liberatore was sexually abusing Plaintiff. (Monsignor John Bendik Dep. 38:18-19; 41:1; 41:20; 47:1-2, Doc. 89-1.) Monsignor Bendik also stated that he had spoken with Father Williams, who expressed his own concerns regarding the impropriety of the relationship between Liberatore and Plaintiff. (Bendik Dep. 52:15-17.) After his conversation with Father Williams, Monsignor Bendik contacted Father Kopacz and “told him there was a concern expressed to me from the Parish of Sacred Heart about [the] relationship [between Liberatore and Plaintiff].” (Ben-dik Dep. 38:18-22.) Specifically, Monsignor Bendik told Father Kopacz that Li-beratore had “a relationship with a young man [at Sacred Heart] parish that could be going beyond the barriers, beyond the parameters, and he better check it out.” (Bendik Dep. 65:18-20.) Monsignor Ben-dik also told Father Kopacz that “something had better be done for the sake of [Plaintiff].” (Bendik Dep. 61:11-12.)
With regard to Plaintiff, in January of 2001, Bishop Timlin received the O’Neill Letter informing him that Plaintiff oftentimes slept overnight in Liberatore’s bedroom at the Rectory and that Liberatore had taken Plaintiff on several overnight trips. (O’Neill Letter.)
D.Brother Antonio F. Antonucci
Brother Antonio Antonucci, a Benedictine monk who moved to Scranton in the Fall of 2000 to attend the University of Scranton (Brother Antonio Antonucci Dep. 12:7-13:14-15; 14:12-13, Sept. 18, 2006, Doc. 90-2), was also informed of Libera-tore’s sexual abuse of Plaintiff. (PL’s Dep. 65:1-66:19). Specifically, Plaintiff told Brother Antonucci, who worked as a cantor, custodian and cook at Sacred Heart (Doc. 76 ¶ 5), that he slept in Liberatore’s bed in the Rectory (Pl.’s Dep. 64:8-11), and that Liberatore would grope Plaintiff in a sexual manner while they wrestled. (Pl.’s Dep. 65:14-66:5.) Rather than encourage Plaintiff to contact the police, or, at the least, tell his mother, Brother Anto-nucci instructed Plaintiff “to forgive [Li-beratore], to keep the issue private, and to not let other people know because it would ruin [Plaintiffs] life and [the lives of] others.” (PL’s Dep. 66:12-15.)
E. Plaintiff’s Relationship with Li-beratore Ends
In May of 2002, when Plaintiff was seventeen (17) years old, Liberatore touched Plaintiffs genitals while they were in Li-beratore’s office at the University of Scranton. (Votum of Bishop Joseph Mar-tino, dated July 23, 2004, Doc. 88-2 pp. 2-3, “Votum”.) Later that month, Libera-tore took Plaintiff on a trip to New York, staying overnight in the same bed at a hotel. (See PL’s Dep. 197:23-25; 199:19-23; Doc. 1-1 ¶ 37.) During the night, Liberatore tried to give Plaintiff oral sex, placing his mouth around Plaintiffs penis. (PL’s Dep. 199:19-23.) At this point, it became obvious to Plaintiff that Liberatore had homosexual intentions regarding him. (Id.) These were the last incidents of sexual abuse perpetrated by Liberatore upon Plaintiff.
F. Liberatore’s Dismissal from the Clergy and his Criminal Convictions
In July of 2003, Joseph Martino was named Bishop of Scranton, replacing Bishop Timlin. (Bishop Joseph Martino Dep. 10:5, July 13, 2006, Dоc. 88-3.) Martino officially became Bishop on October 1, 2003. (Bishop Martino Dep. 11:9.) At some point early in his tenure, Bishop Martino became aware of the rumors and incidents involving Liberatore. (Bishop Martino Dep. 14:5-8.) Upon review of Liberatore’s personnel file, Bishop Martino became “alarmed” at the history- of inappropriate behavior. (Bishop Martino Dep. 21:12-25.) Bishop Martino was troubled by the incident at the Seminary involving Roe, the back massage involving Peter Poe, and another incident which occurred in December of 2002 while Liberatore was visiting the Catholic University of Louvain in Belgium.
(See
Bishop Martino Dep. 32:12-33:25.) Bishop Martino discovered
In January of 2004, Plaintiff and another young man came forward and alleged that Liberatore had sexually abused them. (See Bishop Martino Dep. 108:16-18.) Later that month, Bishop Martino hired an investigator, James Seidel (“Seidel”), to investigate these allegations. (Bishop Martino Dep. 108:8-11; see James Seidel Investigative Insert, Doc. 89-5 pp. 16-17.)
In May of 2004, Liberatore was arrested and charged with sexual abuse in the State of New York, as well as multiple counts of indecent assault and corruption of minors in the Commonwealth of Pennsylvania. (Doc. 89-3 pp. 34^44; Doc. 41-2 p. 24.) Liberatore pleaded guilty to those offenses. (Id.) On July 23, 2004, Bishop Martino dismissed Liberatore from the clerical state, having concluded that “the delict of sexual abuse of a minor was committed by the Reverend Albert M. Libera-tore.” (Votumatl.)
II. Procedural History
On November 5, 2004, Plaintiff filed a Complaint in this Court. (Doc. 1-1.) Therein, Plaintiff asserted a claim pursuant to 18 U.S.C. § 2255, a section of The Child Abuse Victims’ Rights Act of 1986. (Doc. 1-1 ¶¶ 48-51.) Plaintiff alsо raised state law claims of assault and battery (Doc. 1-1 ¶¶ 52-55), vicarious liability (Doc. 1-1 ¶¶ 56-62), aiding and abetting (Doc. 1-1 ¶¶ 63-68), negligent hiring, supervision and retention (Doc. 1-1 ¶¶ 69-75), negligence per se (Doc. 1-1 ¶¶ 76-81), intentional infliction of emotional distress (Doc. 1-1 ¶¶ 82-88), and breach of fiduciary duty (Doc. 1-1 ¶¶ 89-95). On November 3, 2006, both the Diocesan Defendants and Brother Antonucci filed motions for summary judgment. (Docs.75, 76.) These motions are fully briefed and ripe for disposition.
LEGAL STANDARD
Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law.
See Anderson v. Liberty Lobby, Inc.,
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one.
See id.
at 248,
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law.
See
10A ChaRles Alan Weight, ARthuk R. Millee & Mary Kay Kane, Federal Practice and Procedure: Civil 2D § 2727 (2d ed.1983). The moving party may present its own evidence or, where the nonmoving party has the bur
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmоving party.
See White v. Westinghouse Elec. Co.,
The Court need not accept mere conclu-sory allegations, whether they are made in the complaint or a sworn statement.
Lujan v. Nat’l Wildlife Fed’n,
DISCUSSION
The Diocesan Defendants now move the Court to grant summary judgment in their favor as to Counts I, III, V, VI, VII and VIII of Plaintiffs Complaint. Also, Brother Antonucci moves the Court to grant summary judgment in his favor as to Counts IV, VI, VII and VIII of Plaintiffs Complaint. The Diocesan Defendants also seek summary judgment as to Plaintiffs claim for punitive damages.
I. Plaintiffs Federal Law Claim (Count I)
Under 18 U.S.C. § 2255, “[a]ny person who, while a minor, was a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422 or 2423 of this title[, sections which prohibit, inter alia, child molestation, exploitation and pornography,] and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such a person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the costs of the suit, including a reasonable attorney’s fee.” Section 2255 thus provides child victims of sexual abuse, molestation and exploitation with a federal cause of action for money damages. The issue here is against whom may that federal cause of action be brought. The Diocesan Defendants argue that section 2255 only subjects Liberatore, the one who has violated statutes listed in section 2255, to civil liability. Conversely, Plaintiff argues that the Diocesan Defendants can be held liable for the offenses committed by Liberatore undеr the doctrine of agency.
Neither the United States Supreme Court nor the United States Court of Appeals for the Third Circuit has had any cases concerning section 2255. Indeed, there is only a single reported case involving section 2255.
In
Smith v. Husband,
At first, the proposed civil remedy would have given the Government or the victim the right to sue the offender in order to receive treble damages and attorney fees, but not until after the “offender [was] convicted under Civil RICO.” 132 Cong. Rec. E290-02 (Feb. 5, 1986) (statement of Rep. Siljander) (“If an offender is convicted under Civil RICO, the Government or the victim is given the right to sue the offender in order to receive treble damages and attorney fees”). In later debates, a bill was proposed that provided a cause of action to any person injured personally
from an act indictable
under certain child sexual exploitation statutes.
Smith,
Based on this legislative history, the Smith court concluded that Congress’ intent was “to make the civil remedies provision available to any victim able to show by a preponderance of the evidence that the defendant committed the acts described in any of the listed offenses.” Id. at 613 (emphasis added).
This Court concludes that, based upon Smith and the legislative history of section 2255, in order to be subject to liability under section 2255, a defendant must be proven to have violated at least one of the criminal statutes listed in section 2255 by a preponderance of the evidence.
Here, there is sufficient evidence that would allow a reasonable jury to conclude that such violations occurred, as Plaintiff has offered evidence that Liberatore know
Under 18 U.S.C. § 2(a), “[wjhoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable
as a principal”
(emphasis added). As such, one who criminally aids or abets a listed offense is punishable as though he himself committed the offense.
United States v. Private Sanitation Industry
As
sociation of Nassau/Suffolk, Inc.,
In order to establish the offense of criminal aiding and abetting, it must be shown that: (1) the substantive offense has been committed; (2) the defendant knew the offense was being committed; and (3) the defendant acted with the intent to facilitate it.
United States v. Cartwright,
As noted, there is sufficient evidence to allow a reasonable jury to conclude that multiple listed offenses were committed by Liberatore. As such, the first element of criminal aiding and abetting is satisfied. However, even viewing the evidence in the light most favorable to Plaintiff, the Court concludes that no reasonable jury could find that the second and third elements of the aiding and abetting offense are satisfied. While Plaintiffs evidence demonstrates that the Diocesan Defendants had reason to suspect that Liber-atore was sexually abusing Plaintiff, there is nothing in the record demonstrating that the Diocesan Defendants consciously shared Liberatore’s knowledge of the underlying substantive offenses, as well as the specific criminal intent to commit them.
See Loder,
II. Subject Matter Jurisdiction
Under 28 U.S.C. § 1367(a), “the district court shall have supplemental jurisdiction over all of the claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that include joinder or intervention of additional parties.” Thus, section 1367(a) provides for pendent-party jurisdiction in federal question cases.
Exxon Mobil Corp. v. Allapattah Services, Inc.,
Under Third Circuit jurisprudence, “mere tangential overlap of facts is insufficient [to constitute a common nucleus of operative fact], but total congruity between the operative facts ... is unnecessary.”
Nanavati v. Burdette Tomlin Memorial Hospital,
Plaintiffs federal claim against Libera-tore arose from sexual abuse that was perpetrated by Liberatore while he was a priest within the Diocese. Plaintiffs state claims against the Diocesan Defendants and Brother Antonucci' are based on these same facts, with the caveat that Plaintiffs state claims require proof of additional facts beyond merely Liberatore’s acts of abuse. Thus, while not totally congruous, Plaintiffs federal and state claims share more than a mere tangential overlap. As such, Plaintiffs state law claims against the Diocesan Defendants and Brother An-tonucci share a common nucleus of operative fact with his federal law claims against Liberatore. Therеfore, the Court has jurisdiction over all of Plaintiffs federal and state claims.
The Court will now address Plaintiffs state law claims against the Diocesan Defendants and Brother Antonucci.
III. Plaintiffs State Law Claims against the Diocesan Defendants and Brother Antonucci (Counts III, IV, V, VI, VII and VIII)
A. Vicarious Liability (Count III)
In Count III, Plaintiff alleges that the Diocese, Sacred Heart and Bishop Timlin
Under Pennsylvania law, “an employer is held vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope. of the employment.”
Fitzgerald v. McCutcheon,
In addition, Pennsylvania courts have held that “an assault committed by an employee upon another for personal reasons or in an outrageous manner is not actuated by an intent to perform the business of the employer and, as such, is not within the scope of employment.”
Fitzgerald,
Here, it is clear that Liberatore’s sexual molestation of Plaintiff was not within the scope or nature of his employment as a priest. Indeed, “[t]he activity of which [Plaintiff] now complains is wholly inconsistent with the role of one who is received into the Holy Orders as an ordained priest of the Roman Catholic Church.”
Hutchison by Hutchison v. Luddy,
B. Aiding and Abetting (Count IV)
In Count IV, Plaintiff sets forth a claim against Brother Antonucci for tor-
Plaintiff neither avers, nor has presented evidence, that Brother Antonucci acted with Liberatore in a common scheme or plan. Subsection (a) is thus inapplicable.
To determine whether Brother Antonucci provided “substantial assistance” to Liberatore, the comments to section 876 of the Restatement provide a list of five factors: (1) the nature of the act encouraged; (2) the amount of assistance given by the defendant; (3) the defendant’s presence or absence at the time of the tort; (4) the defendant’s relation to the tortfeasor; and (5) the defendant’s state of mind.
Hurley v. Atlantic City Police Dep't,
Here, Plaintiff has failed to offer sufficient evidence to allow a reasonable jury to conclude that Brother Antonucci gave substantial assistance or encouragement to Liberatore. Plaintiff has offered evidence that Brother Antonucci dissuaded Plaintiff and his mother from reporting Liberatore’s abuse to the authorities, instead suggesting that Plaintiff forgive Li-beratore for his misdeeds. Under Pennsylvania case law, “substantial assistance” requires that the putative aider or abetter take some affirmative action which causes the tortious actor to conduct himself inappropriately.
Welc v. Porter,
Here, there is simply no evidence that Brother Antonucci aided the efforts of Li-beratore or encouraged or incited him to commit his abusive acts. There is no evidence that Brother Antonucci was present during the commission of the abuse. Moreover, despite Brother Antonucci’s advice, Plaintiff and his mother were entirely free to ignore him and contact the authorities on their own accord. As such, Brother Antonucci’s efforts to dissuade Plaintiff and his mother from contacting the authorities cannot be viewed as “substantial assistance.” Accordingly, the Court will grant Brother Antonucci’s motion for summary judgment as to Count IV of Plaintiffs Complaint.
Plaintiff next claims that the Diocese, Sacred Heart and Bishop Timlin are liable for negligence in their hiring, supervision and retention of Liberatore as a Diocesan priest.
Under Pennsylvania law, an employer is subject to liability for harm resulting from his conduct if he is negligent or reckless “in the employment of improper persons or instrumentalities in work involving risk of harm to others; ... in the supervision of the activity; or ... in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.”
R.A. ex rel. N.A.,
Accordingly, an employer owes a duty “to exercise reasonable care in selecting, supervising and controlling employees.”
Id.
The Supreme Court of Pennsylvania has held that, “[t]o fasten liability on an employer[,] ... it must be shown that the employer knew or, in the exercise of ordinary care, should have known of the necessity for exercising control of his employee.”
Dempsey v. Walso Bureau, Inc.,
In the instant case, the Diocese, Sacred Heart and Bishop Timlin may be liable if they knew or should have known that Li-beratore had a propensity for committing sexual abuse and his employment as Pastor at Sacred Heart might create a situation where his propensity would harm a third person, such as Plaintiff.
See Coath v. Jones,
When viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that the Diocese, Sacred Heart and Bishop Timlin were negligent or reckless in supervising and retaining Liberatore. However, the Court concludes that a reasonable jury could not find that the Diocese, Sacred Heart and Bishop Timlin were negligent or reckless in hiring Liberatore because there is no evidence suggesting that Liberatore
As noted above, under Section 213(b) of the Restatement (Second) of Agency, a principal is liable for harm resulting from his conduct if he is negligent or reckless in the employment of improper persons in work involving risk of harm to others. Restatement (Second) Of Agency § 213(b). Additionally, under Section 213(d) of the Restatement (Second) of Agency, a principal is liable for harm resulting from his conduct if he is negligent or reckless in permitting, or failing to prevent, negligent or other tortious conduct by persons upon his premises. Restatement (Second) of Agency § 213(d).
Here, viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that the Diocese, Sacred Heart and Bishop Timlin were negligent or reckless in retaining Liberatore because the jury could conclude that Liberatore was an improper person whо posed a risk of sexual abuse to minor males. A reasonable jury could also find that the Diocese, Sacred Heart and Bishop Timlin were negligent or reckless in permitting, or failing to prevent, negligent or other tortious conduct by persons on church premises based on Liberatore’s sexual abuse of Plaintiff in the Sacred Heart Rectory.
There is evidence that Bishop Timlin was informed that Plaintiff was sleeping in Liberatore’s bedroom at the Rectory and that Liberatore had taken Plaintiff on several overnight trips (O’Neill Letter). Bishop Timlin acknowledged that he would characterize such activity as grooming behavior. (Timlin Dep. 36:8-37:9.) Bishop Timlin was informed of Liberatore’s inappropriate behavior with Roe and Poe. (Bohr Dep. 42:8-43:11; Summary at 2.) Shortly thereafter, Bishop Timlin removed Liberatore from the Seminary. However, rather than dismiss Liberatore as a Diocesan priest, Bishop Timlin assigned him to another parish within the Diocese. Based on this evidence, a reasonable jury could infer that this provided Liberatore the opportunity to befriend Plaintiff and then sexually abuse him.
Further, the awareness of the potential Liberatore posed as a pedophile raises the question of the relevance of the Diocese’s and Bishop Timlin’s awareness of Libera-tore’s behavior with Roe. The Court finds it relevant for the following reasons.
A Roman Catholic priest takes a vow of celibacy at his ordination and, therefore, is called to refrain from any and all sexual activity. Wikipedia,
supra,
“Clerical Celibacy”, http://en.wikipedia.org'wiki/ Celibacy#Clerical_celibacy. While any sexual act outside the sacrament of marriage is forbidden by the Church, Wikipedia,
supra,
“Roman Catholic Church”, http://en.wikipedia.org/wiki/Roman_ Catholic_Church#Sexuality, homosexual acts are considered to be “intrinsically immoral” and “contrary to the natural law.” Wikipedia,
supra,
“Instruсtion Concerning the Criteria for the Discernment of Vocations with regard to Persons with Homosexual Tendencies in view of their Admission to the Seminary and to Holy Orders”, http://en.wikipedia.org/wiki/Instruction_ Concerning_the_Criteria_for_the_ Discernment_of_Vocations_with_regard_ to_Persons_with_Homosexual_ Tendencies_in_view_of_their_Admission_ to_the_Seminary_and_to_Holy_Orders. Indeed, the Church forbids the ordination of men to the priesthood who have “deeply rooted homosexual tendencies.” Wikipedia,
supra,
“List of Christian denominational positions on homosexuality”, http://en. wikipedia.org/wiki/List_of_Christian_ denominationaLpositions on_ homosexuality#Roman_Catholic_Church. Nevertheless, in general, homosexual be
It does not follow that a homosexual is more likely than a heterosexual to prey on minors of the same sex. As such, standing alone, Liberatore’s homosexual behavior with regard to Roe, an adult, would be irrelevant as to the issue of whether the Diocesan Defendants had notice that Li-beratore had a propensity to sexually abuse a minor male. However, Libera-tore’s behavior with regard to Roe becomes relevant, as to the issue of notice to the Diocesan Defendants, by virtue of the fact that it was strikingly similar to that which he later engaged in with regard to Plaintiff.
Liberatore was in Roe’s company a great deal, bought Roe expensive gifts, took Roe on overnight trips and had Roe sleep in his room at the Seminary. This behavior was noticed by colleagues, who, in turn, made their observations and concerns known to the Diocesan Defendants. While at Sacred Heart, Liberatore counseled Plaintiff regarding the death of his father, hired Plaintiff as a sacristan, was in Plaintiffs company an inordinate amount of time, purchased expensive gifts for Plaintiff, took Plaintiff on overnight trips and had Plaintiff sleep in his room at the Rectory. Like his relationship with Roe, Liberatore’s relationship with Plaintiff drew comment from people who were in a position to view, on a daily basis, much of what occurred between them. These people, in turn, informed the Diocese, Sacred Heart and Bishop Timlin of their observations and concerns.
Accordingly, Liberatore’s homosexual behavior with regard to Roe is legally relevant as to the issue of whether the Diocese, Sacred Heart and Bishop Timlin had notice that Liberatore was, at the very least, grooming Plaintiff for a homosexual relationship, if not already involving him in one.
However, even ignoring Liberatore’s relationship with Roe, a reasonable jury could conclude that there was adequate warning to the Diocese, Sacred Heart and Bishop Timlin that Liberatore was grooming Plaintiff for a homosexual relationship, and that it may well have already begun. The notice of Plaintiffs sleepovers in the Rectory, the gifts given to Plaintiff and the overnight trips is sufficient to allow a reasonable jury to conclude that the Diocese, Sacred Heart and Bishop Timlin were negligent or reckless in retaining Liberatore as a Diocesan priest.
Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could also conclude that the Diocese, Sacred Heart and Bishop Timlin were negligent or reckless in permitting, or failing to prevent, Liberatore’s tortious conduct upon church premises, given Plaintiffs statement that Liberatore routinely sexually abused him while they slept in Libera-tore’s bedroom in the Sacred Heart Rectory.
Further, the Court cannot conclude as a matter of law that the Diocese, Sacred Heart and Bishop Timlin are not liable under Section 317 of the Restatement (Second) of Torts, as a reasonable jury could сonclude that these defendants knew of the necessity and had the opportunity and ability to control Liberatore’s actions, but nevertheless failed to exercise reasonable care to prevent Liberatore, acting outside the scope of his employment, from intentionally harming Plaintiff while on church premises. Given the evidence of Bishop Timlin’s awareness of Liberatore’s relationship with Roe, Plaintiffs sleeping in Liberatore’s bedroom at the Rectory and the overnight trips on which Libera-tore had taken Plaintiff, a reasonable jury could conclude that the Diocese, Sacred Heart and Bishop Timlin had reason to believe that Liberatore was, at the very
Consequently, Count V of Plaintiffs Complaint will survive summary judgment to the extent that Plaintiff claims that the Diocese, Sacred Heart and Bishop Timlin were negligent in supervising and retaining Liberatore. The Court will grant summary judgment as to Count Y of Plaintiffs Complaint to the extent that Plaintiff claims that Liberatore was negligently hired.
D. Negligence Per Se (Count VI)
In Count VI of his Complaint, Plaintiff sets forth a claim of negligence per se arising from Defendants’ alleged violation of the Child Protective Services Act, 23 Pa. Cons.Stat. Ann. § 6811. Specifically, Plaintiff alleges that the Diocesan Defendants and Brother Antonucci failed to comply with the reporting requirements of section 6311. The Diocesan Defendants and Brother Antonucci now move this Court for summary judgment as to this count. The Diocesan Defendants argue that they never “came into contact” with Plaintiff and thus were not subject to section 6311. Brother Antonucci asserts that, because he was not employed by the Diocese as a priest, he too was not subject to the reporting requirement imposed by section 6311.
Section 6311 provides, in pertinent part:
Persons who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when they have reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child.
23 Pa. Cons.Stat. Ann. § 6311(a). Under section 6311(b), “persons required to report under subsection (a) include, but are not limited to, any ... member of the clergy.” 23 Pa. Cons.Stat. Ann. § 6311(b). As is clear from its language, subsection (b) recites an inclusive, rather than exclusive, list of those persons required to report.
Under Pennsylvania law, the elements of a negligence
per se
action are: (1) the purpose of the statute must be, at least in part, to protect the interest of the plaintiff, individually, as opposed to the public; (2) the statute must clearly apply to the conduct of the defendant; (3) the defendant must violate the statute; and (4) the violation of the statute must proximately cause the plaintiff injury.
Jordan v. City of Philadelphia,
The first element of Plaintiffs negligence
per se
action is easily met. Section 6311 was clearly promulgated so as to protect abused children such as Plaintiff.
J.E.J. v. Tri-County Big Brothers/Big Sisters, Inc.,
Second, clergy are expressly included within the list of individuals who have a duty to report suspected child abuse. 23 Pa. Cons.Stat. Ann. § 6311(b). As such, the statute clearly applies to the Diocesan Defendants.
The Court is also of the opinion that Brother Antonucci, a benedictine monk who was hired by Liberatore to serve as a cantor, custodian and cook at Sacred
Third, a reasonable jury could find that Defendants violated the statute. Viewing the record in the light most favorable to Plaintiff, there is evidence which supports the conclusion that Defendants had “reasonable cause to suspect” that Liberatore was sexually abusing Plaintiff. The Diocesan Defendants were informed of Libera-tore’s past incidents involving Roe and Poe. They had also been informed of the fact that Plaintiff was sleeping in Libera-tore’s bedroom in the Rectory. In addition, several people had voiced their own concerns and suspicions regarding the relationship between Liberatore and Plaintiff, and supported these suspicions with their own personal observations of Libera-tore’s behavior towards Plaintiff. As Plaintiff was a parishioner, alter server and sacristan at Sacred Heart, and the reports concerned a Diocesan priest’s abuse, the Diocesan Defendants were in sufficient “contact” with Plaintiff to bring them within the reporting requirements of the Child Protective Services Act. As for Brother Antonucci, Plaintiff directly told him of Liberatore’s sexual abuse. As such, Plaintiff “came into contact” with Brother Antonucci. Accordingly, there was sufficient evidence within the knowledge of Defendants to create “reasonable cause to suspect” that Liberatore was sexually abusing Plaintiff. As it is uncontested that Defendants did not report Libera-tore’s suspected abuse of Plaintiff to law enforcement authorities, a reasonable jury could conclude that Defendants violated section 6311 of the Child Protective Services Act.
Fourth, when viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that Defendants’ failure to report Liberatore’s sexual abuse of Plaintiff, in violation of section 6311, proximately caused the injuries Plaintiff suffered. Liberatore was convicted of sexual abuse, indecent assault and corruption of minors based on his May 2002 assaults upon Plaintiff. The Diocesan Defendants knew as early as January of 2001 that Plaintiff was sleeping in Liberatore’s bedroom at the Rectory. Plaintiff also stated in his deposition that he told Brother An-tonucci, prior to May of 2002, that Libera-tore was sexually abusing him. As such, a reasonable jury could find that, had Defendants reported Liberatore to law enforcement authorities, Liberatore would not have had the opportunity to sexually abuse Plaintiff in May of 2002. Summary judgment as to Count VI is thus inappropriate and will be denied.
E. Intentional Infliction of Emotional Distress (Count VII)
In Count VII, Plaintiff asserts a claim of intentional infliction of emotional distress
“To prove а claim of intentional infliction of emotional distress, the following elements must be established: (1) the conduct must be extreme and outrageous; (2) it must be intentional or reckless; (3) it must cause emotional distress; (4) that distress must be severe.”
Hoy v. Angelone,
In this case, Plaintiff has failed to present competent medical evidence to support his claim of severe emotional distress, as required under Pennsylvania law. As such, the Court will grant summary judgment as to Count VII of Plaintiffs Complaint.
F. Breach of Fiduciary Duty (Count VIII)
1. Introduction
In Count VIII, Plaintiff alleges that Defendants Liberatore, the Diocesan Defendants and Brother Antonucei breached their respective fiduciary duties to Plaintiff. Plaintiff argues that the Diocesan Defendants, as well as Brother Antonucei, breached their fiduciary duties that were owed to Plaintiff by placing Liberatore in a position to serve as Plaintiffs priest and counselor, by failing to remove Liberatore .from that position, and by failing to report Liberatore to law enforcement authorities after having ample reason to believe Li-beratore had committed acts of sexual abuse. Plaintiff contends that the Diocesan Defendants and Brother Antonucei, rather than act in his best interest, chose rather to act in their own interests by ignoring and even attempting to conceal Liberatore’s sexual abuse of a minor. The Diocesan Defendants have moved for summary judgment as to this count, arguing that Pennsylvania does not recognize a claim for breach of fiduciary duty in a case similar to this one. Brother Antonucei also moves for summary judgment, asserting that the facts do not support Plaintiffs claim.
Under Pennsylvania law, “[t]he general test for determining the existence of ... a [fiduciary] relationship is whether it is clear that the parties did not deal on equal terms.”
Frowen v. Blank,
The Supreme Court of Pennsylvania has not determined whether or not there is a cause of action for breach of fiduciary duty against a priest or diocese.
See Gaines v. Krawczyk,
2. The Courts of Pennsylvania
Decisions of the intermediate and trial courts of Pennsylvania provide support for the conclusion that the Supreme Court of Pennsylvania would recognize Plaintiffs breach of fiduciary duty claim against Li-beratore and the Diocesan Defendants. These decisions suggest a rule holding that, when a plaintiff had a special relationship with the defendant priest and diocese, such as counseling or participation in church-sponsored activities, a fiduciary relationship will be found to exist and the plaintiffs breach of fiduciary duty claim will be recognized.
The Superior Court of Pennsylvania has on two occasions refused to find a fiduciary relationship between parishioners and the diocese in actions arising from alleged acts of sexual abuse perpetrated by diocesan priests.
See Meehan v. Archdiocese of Philadelphia,
The Pennsylvania Courts of Common Pleas have on three occasions recognized a claim against a priest or diocese for breach of fiduciary duty.
See Morrison v. Diocese of Altoona-Johnstown,
68 Pa. D.
&
C. 4th 473,
In
Morrison v. Diocese of Altoona-Johnstown,
the court held that the plaintiff-parishioner had stated a claim for breach of fiduciary duty against the diocese and its officials in two respects. 68 Pa. D.
&
C. 4th at 491,
In
Nardella v. Dattilo,
the court held that the plaintiff-parishioner, an adult woman, had stated a claim against her priest, the diocese, and diocesan officials for breach of fiduciary duty arising from the sexual relationship that developed between the plaintiff and priest during counseling sessions regarding the death of the plaintiffs mother. 36 Pa. D.
&
C. 4th at 380-82,
3. Federal Courts and Supreme Courts of Other States
“[T]he federal and state supreme courts that have considered a breach of fiduciary duty claim ... uniformly have rejected attempts to found the cause of action merely on the relationship between parishioners and members of the clergy.”
Gaines,
In
Gaines v. Krawczyk,
the United States District Court for the Western District of Pennsylvania held that the Supreme Court of Pennsylvania would not recognize a breach of fiduciary duty claim in a case in which a priest furnished alcohol to a minor college student, who subsequently fell to his death from a crawlspace in the church.
A fiduciary relationship was found to exist by the United States Court of Appeals for the Second Circuit in
Martinelli v. Bridgeport Roman Catholic Diocesan Corp.,
In
Fortin v. The Roman Catholic Bishop of Portland,
As noted above, several courts have refused to recognize breach of fiduciary duty claims brought against priests or dioceses because such claims offend the First Amendment.
See Gaines,
These courts reject a breach of fiduciary duty claim on First Amendment grounds for one of two reasons. First, some courts hold that it is impossible for a plaintiff-parishioner to establish the existence of a fiduciary relationship with a priest or diocese without impermissibly resorting to religious understandings to demonstrate the necessary disparity in position and influence or explain why he reposed trust and confidence in the priest and diocese.
See e.g., Teadt,
However, as mentioned above, an equal, if not greater, number of courts allow a breach of fiduciary duty claim when there exists a special relationship between the priest and parishioner, notwithstanding the First Amendment.
See e.g., Mabus v. St. James Episcopal Church,
These courts reason that, when a breach of fiduciary duty claim arises from the priest’s allegedly having used a parishioner’s trust in him to his own advantage, rather than to the parishioner’s benefit, all a court need ask is whether there is dealing on unequal terms based on the parishioner’s trust, justifiably reposed, and whether that trust has been breached.
See Moses v. Diocese of Colorado,
4. Prediction
In light of the Supreme Court of Pennsylvania’s definition of what constitutes a fiduciary relationship,
see Leedom,
As previously stated, under Pennsylvania law, a fiduciary relationship exists “when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible.”
Leedom,
This definition fits the relationship of a priest and a parishioner once the priest “accepts the parishioner’s trust and accepts the role of counselor.”
Moses,
As to a diocese and its officials, a diocese exerts an overmastering influence over a plaintiff, or a plaintiff exhibits weakness, dependence on or justifiable trust in the diocese and its officials when, as here, the plaintiff is a minor and is involved in the church beyond that of a mere parishioner, whether by virtue of his serving the church, participating in church-sponsored activities, or receiving counseling from a priest. When the plaintiff is a minor, the power differential between the plaintiff and priest is magnified. This power differential makes it difficult for a minor who is involved in the church to refuse the unwelcome sexual advances of a priest or report such an advance to his parents or the authorities.
See Schneider v. Plymouth State College,
The recognition of Plaintiffs breach of fiduciary duty claim against Li-beratore and the Diocesan Defendants does not offend the First Amendment. Plaintiffs breach of fiduciary duty claim only raises the issues of whether the parties did not deal on equal terms, but, rather, on the one side there was an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible, whether that unfair advantage was exploited by Liberatore, and whether the Diocesan Defendants failed to provide and maintain a safe environment for Plaintiff to participate in church activities.
See Moses,
The
Podolinski
case is not to the contrary. There, the Court of Common Pleas dismissed the plaintiff-parishioner’s breach of fiduciary duty claim based upon the diocesan officials’ failure to adhere to church canons when dealing with the plaintiffs complaint of a priest’s sexual misconduct, as precluded by the First Amendment. 23 Pa. D. & C. 4th at 408-11,
Accordingly, the Court concludes that the Supreme Court of Pennsylvania would recognize Plaintiffs breach of fiduciary duty claims against Liberatore and the Diocesan Defendants, and that such claims do not offend the First Amendment. Therefore, the Court will deny the Diocesan Defendants’ motion for summary judgment as to Count VIII of Plaintiffs Complaint.
However, the Court will grant Brother Antonueсi’s motion for summary judgment as to Count VIII of Plaintiffs Complaint. Plaintiff stated in his deposition that he informed Brother Antonucci of Liberatore’s sexual abuse. Rather than encourage Plaintiff to contact the police or tell his mother, Brother Antonucci instructed Plaintiff “to forgive [Liberatore], to keep the issue private, and to not let other people know because it would ruin [Plaintiffs] life and [the lives of] others.” In essence, Plaintiff claims that this was bad advice and that, by giving this advice to Plaintiff, Brother Antonucci became liable to Plaintiff for breach of fiduciary duty. However, Plaintiffs claim is only a restatement of the claim of clergy malpractice, a professional negligence claim which is barred by the First Amendment and not recognized in Pennsylvania.
See Podolinski,
23 Pa. D. & C. 4th at 399-400,
IV. Plaintiffs Punitive Damages Claim
In his Complaint, Plaintiff seeks that punitive damages be imposed against the Diocesan Defendants and Brother Anto-nucci. The Diocesan Defendants move this Court to grant summary judgment in their favor as to this claim.
Under Pennsylvania law, “[p]uni-tive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.”
Feld v. Merriam,
Accordingly, under Pennsylvania law, a punitive damages claim must be supported by evidence sufficient to establish that (1) the defendant had a subjective
Viewing the summary judgment record in the light most favorable to Plaintiff, there is sufficient evidence to allow a reasonable jury to award punitive damages. The Diocesan Defendants and Brother Antonucci knew that Plaintiff was routinely sleeping in Liberatore’s bedroom and that Liberatore had taken Plaintiff on several overnight trips. The Diocesan Defendants also knew about Liberatore’s past involvement with Roe. Brother Antonucci had been told by Plaintiff that Liberatore had touched him in a sexual manner. A reasonable jury could conclude that a minor’s sleeping in a priest’s bedroom and a priest’s taking a minor alone on overnight trips are facts which create a high degree of risk of physical harm to the minor. The failure to end this conduct, with its high degree of risk of physical harm to Plaintiff, could reasonably be viewed by a jury as reckless. As such, the Court will deny the Diocesan Defendants’ motion for summary judgment as to Plaintiffs claim for punitive damages.
CONCLUSION
For the above stated reasons, the Court will: (1) grant the Diocesan Defendants’ motion for summary judgment as to Count I (18 U.S.C. § 2255) of Plaintiffs Complaint; (2) grant the Diocese, Sacred Heart and Bishop Timlin’s motion for summary judgment as to Count III (vicarious liability) of Plaintiffs Complaint; (3) grant Brother Antonucci’s motion for summary judgment as to Count IV (aiding and abetting) of Plaintiffs Complaint; (4) grant the Diocese, Sacred Heart and Bishop Timlin’s motion for summary judgment as to Count V (negligent hiring, supervision and retention) of Plaintiffs Complaint to the extent that it claims negligent hiring; (5) deny the Diocese, Sacred Heart and Bishop Timlin’s motion for summary judgment as to Count V (negligent hiring, supervision and retention) of Plaintiffs Complaint to the extent that it claims negligent supervision and retention; (6) deny Defendants’ motion for summary judgment as to Count VI (negligence per se) of Plaintiffs Complaint; (7) grant Defendants’ motion for summary judgment as to Count VII (intentional infliction of emotional distress) of Plaintiffs Complaint; (8) deny the Diocesan Defendants’ motion for summary judgment as to Count VIII (breach of fiduciary duty) of Plaintiffs Complaint; (9) grant Brother Antonucci’s motion for summary judgment as to Count VIII (breach of fiduciary duty) of Plaintiffs Complaint; and (10) deny the Diocesan Defendants’ motion for summary judgment as to Plaintiffs claim for punitive damages.
An appropriate Order follows.
ORDER
NOW, this 19th day of March, 2007, IT IS HEREBY ORDERED that:
(1) Defendants Diocese of Scranton, Sacred Heart of Jesus Church, Bishop James C. Timlin, and Rev. Joseph R. Kopacz’s Motion for Summary Judgment (Doc. 75-1) is:
(A) GRANTED as to Counts I, III and VII of Plaintiffs Complaint;
(B) GRANTED as to Count V of Plaintiffs Complaint to the extent that Plaintiff claims negligent hiring;
(C) DENIED as to Count V of Plaintiffs Complaint to the extent thatPlaintiff claims negligent supervision and retention;
(D) DENIED as to Counts VI and VIII of Plaintiffs Complaint;
(E) DENIED as to Plaintiffs claim for punitive damages.
(2) Defendant Brother Antonio F. Anto-nucci’s Motion for Summary Judgment (Doc. 76) is:
(A) GRANTED as to Counts IV, VII and VIII of Plaintiffs Complaint;
(B) DENIED as to Count VI of Plaintiffs Complaint.
(3) This case shall be placed on the June, 2007 trial list of this Court.
Notes
. Although they were adults, the Court chooses to refer to Roe and others with whom Liberatore engaged in inappropriate conduct by fictitious names because of the delicate nature of the facts in this case.